Gujarat High Court
Juna Deesa Gram Panchayat vs State Of Gujarat on 9 February, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/19214/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19214 of 2015
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 19214 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JUNA DEESA GRAM PANCHAYAT & 4 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR BHUSHAN B OZA(1072) for the Petitioner(s) No. 1,2,3,4,5
for the Respondent(s) No. 1
MR ISHAN JOSHI,AGP for the Respondent(s) No. 1,2
MR AMIT N PATEL(2749) for the Respondent(s) No. 4
MR MEHUL H RATHOD(701) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 09/02/2021
ORAL JUDGMENT
Heard learned advocate Mr.Bhushan Oza for the petitioners, learned Assistant Government Pleader Mr.Ishan Joshi for the respondent Nos.1 and 2, learned advocate Mr.Mehul Rathod for the respondent No.3 and Page 1 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT learned advocate Mr.Amit Patel for the respondent No.4 through video conference.
1. Rule. Learned Assistant Government Pleader Mr.Ishan Joshi waives service of notice of rule for respondent Nos.1 and 2, learned advocate Mr.Mehul Rathod wavies service of notice of rule for respondent No.3 and learned advocate Mr.Amit Patel waives service of notice of rule for respondent No.4.
2. By this petition under Article 227 of the Constitution of India, the petitioners have prayed for the following reliefs:
"(A) To issue a writ of mandamus or a writ in the nature of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 22.07.2015 passed by the Learned Secretary (Appeals), Revenue Department in Revision Application No.MVV/JMN/BNS/04/2014 confirming the order dated 10.12.2013 of the Collector, Banaskantha bearing No.A.Jamin.2./Remand Case No.10/1112 allotting 10 acres of land admeasuring Survey No.727/ P/1 of village Juna Deesa for the ressons stated in the Memo of the Petition;
(B) Pending admission, hearing and final disposal of the above Special Civil Application, to stay the execution, implementation and operation of the impugned orders dated 22.7.2015 passed by the Learned Secretary (Appeals), Revenue Department in Revision Application No.MVV/JMN/BNS/04/2014 confirming the order dated 10.12.2013 of the Collector, Banaskantha bearing No.A.Jamin.2./Remand Case No.10/1112 allotting 10 acres of land admeasuring Survey No.727/P/1 of village Juna Deesa for the reasons stated in the Memo of Petition;
(C) To grant adinterim and interim relief in terms of Para9 (B) hereinabove for the reasons stated in the Memo of the Petition.
(D) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.
(E) To award the cost of this petition."
3. Having regard to the controversy in narrow Page 2 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT compass and with consent of the learned advocates for the respective parties, the matter is taken up for hearing.
4. Brief facts of the case are as under:
4.1. The Collector, Banaskantha vide order No.A/Jamin/2/Vashi/N.P.Ghan Kachara Vashi.6252 to 61 dated 29.12.2003 directed to resume the Government the Gauchar land admeasuring 10 acres of Survey No.727/P/1 of the villageJuna Deesa from the panchayat without any compensation and allotted the said land to Deesa Nagarpalika for the disposal of the solid waste.
4.2. Against the aforesaid order of the Collector, Banaskantha, the village people of Juna Deesa had preferred Revision Application before the Secretary (Appeals) Revenue Department (for short 'SSRD'), being Revision Application No.37/2004. The SSRD vide order bearing No.JMN/BNS/37/2004 dated 13.05.2011 partially quashed and set aside the said order and remanded the matter to the Collector, Banaskantha at Palanpur.
4.3. Thereafter the Collector, Banaskantha, once again vide order dated 10.12.2013 reiterated his previous order after hearing the people of village Juna Deesa.
4.4. Being aggrieved by the said order, the people of Page 3 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT village Juna Deesa, preferred Revision Application before the SSRD being Revision Application No.MVV/JMN/BNS/4/2014. The village people had filed the said Revision Application in the nature of Public Interest Litigation and accordingly, it was so stated in the causetitle of both the revision applications of the year 2004 as well as 2014. The SSRD vide his order dated 4/5.6.2014 granted stay of the execution of the order passed by the Collector, Banaskantha.
4.5.During the pendency of the aforesaid Revision, the Deesa Nagarpalika had started violating the order of statusquo and therefore Sarpanch of Juna Deesa had made representation to the Collector on 14.07.2014 that despite the order of the SSRD the Deesa Nagarpalika was continuing to dump the solid waste at the particular site and on 17.07.2017 started the work of digging bore well, therefore action should be taken against them. The Deputy Collector, Deesa wrote letter to the Chief Officer, Deesa Nagarpalika to act in accordance with the stay order.
4.6.Thereafter, the SSRD Secretary (Appeals) Revenue Department, vide judgment and order dated 22.07.2015 dismissed Revision Application and confirmed the order dated 10.12.2013 of the Collector, Banaskantha.
5. Learned advocate Mr.Oza submitted that the order of the Collector, Banaskantha allotting land bearing Survey No.727/P/1 of Juna Deesa to Deesa Nagarpalika Page 4 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT for the disposal of solid waste is erroneous, illegal and discriminatory.
5.1. It was submitted that the distance between Juna Deesa and Nava Deesa is approximately 5 kms and though there was sufficient land at Nava Deesa being waste land demand for the particular land of Juna Deesa was made and the Collector without considering objections of the village people granted the said land.
5.2. It was submitted that the Municipal Solid Waste (Management and Handling) Rules, 1999 (for short 'Rule 1999') is applicable to every municipal authority responsible for collection, segregation, storage, transportation, processing and disposal of municipal solid wastes. Rule4 thereof provides for Responsibility of municipal authority. Rule4(1) as under :
"Every municipal authority shall, within the territorial area of the municipality, be responsible for the implementation of the provisions of these rules, and for any infrastructure development for collection, segregation, storage, transportation, processing and disposal of municipal solid wastes."
Therefore, the selection of landfill site outside the territorial area of the Municipality is against the provisions of the Rules, 1999.
Page 5 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022C/SCA/19214/2015 JUDGMENT 5.3. It was submitted that by selection of the
particular site, the Rules, 1999 are also violated since the indiscriminate and unprocessed disposal is taking place, as the liquid that seeps through solid wastes or other medium and has extracts of dissolved or suspended material from it which is contrary to the Rules, 1999.
5.4. It was submitted that the waste disposal by the respondent Municipality of commercial and residential waste also includes solid and semisolid hazardous waste from the industry. It was further stated that there is no treatment provided to the biomedical waste which is being disposed by the Municipality contrary to the definition of Municipal Solid Wastes as contained in Clause(xv) of Rule3 of the Rules, 1999.
5.5. It was submitted that the selection of the landfill site is also contrary to the ScheduleIII of the Rules, 1999. The area has been selected without having necessary consideration for the habitation clusters, water bodies, monuments, wet lands, etc. Page 6 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT which is contrary to Schedule8 of the ScheduleIII of the Rules, 1999. No buffer zone has been maintained around the landfill site and it has not been incorporated in the Town Planning Department's land use plans as reliably learnt by the petitioners.
5.6. It was further submitted that the selection of the site for landfill site is contrary to Clause10 of ScheduleIII of the Rules, 1999. Not only that the Clause12 of the Rules, 1999 is also being blatantly violated and stray animals are entering the site freely as can be seen from the photographs annexed.
5.7. It is submitted that the waste subjected to the land filling is not compacted as per Clause18 of ScheduleIII nor is the waste covered at all though provided by ClauseIII of ScheduleIII of the Rules, 1999.
5.8. It was submitted that as per reliable information there is lot of waste land available in 148 villages of Deesa Taluka and therefore the Page 7 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT gauchar land acquired for the disposal of solid waste near Juna Deesa village is not required to be used for such purpose.
5.9. It was submitted that Air strip is at a distance of 5 kms. from the land used for disposal of solid waste by the respondents and the use of land for such disposal without prior permission of the Airport Authorities is illegal according to the norms laid down by Central Pollution Control Board.
5.10. It was submitted that the Juna Deesa Gram Panchayat had by passing resolution objected to the allotment of gauchar land for solid waste disposal in view of the fact that there is no adequate gauchar land in the village.
5.11. It was submitted that the Collector has allotted the land without calling for objections or suggestions from the village and ignored the resolution opposing the said allotment.
5.12. It was submitted that though the Collector Page 8 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT has vide Condition No.24 of the said order stated that there is a VOKLA (water way) at near distance of the land and therefore arrangement would have to be made to ensure that the water of the allotted land does not go to the VOKLA. This condition is factually incorrect because the Deputy Collector who has given his report has done so without personally visiting the site. In fact the land in question itself is VOKLA land and not that it is near VOKLA. Therefore no such land could be allotted for solid waste disposal.
5.13. It was submitted that the Collector has ignored that the land in question if abutting Gangli Mahadev Temple. Not only that in the vicinity of the land in question there is Siddh Ambika Dishaval Sangh Temple and Shatra Sahid Dargah of Muslims. In addition thereto, there are ancient Derasars of Jains at village Juna Deesa. At these religious places every year there are big religious festivals taking place and due to the disposal of solid waste and foul smell emitting therefrom, it would hurt the religious feelings of not only the village people but also Page 9 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT people who would visit these places from all over the country. That every Thursday people of both Hindus and Muslims communities visit Satra Sahid Dargah.
5.14. It was submitted that the land in question is abutting Deesa Patan Highway on the western side.
The said Highway is busy road where every day thousands of persons commute by vehicles. They all will have to face the foul smell emitting from the disposal of solid waste and situation will aggravate during Monsoon.
5.15. It was submitted that on one hand, the Government undertakes big projects for the protection of environment and on the other hand, by this allotment, it causes deterioration of environment.
5.16. It was submitted that the rain water comes to this VOKLA from the upstream and merges in river Banas as the said land is used for the disposal of solid waste, then with the flow of rain water, the solid waste would also flow and go to river and such waste would spoil the water table of the area due to Page 10 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT percolation of water.
5.17.It was submitted that as per the guidelines of Central Pollution Control Board as well as Gujarat Pollution Control Board, no site can be allotted for disposal of solid waste in flood prone area. It was submitted that though these guidelines were produced before the Collector as well as Learned Secretary (Appeals) they have ignored the same.
5.18. It was submitted that in the year 1973 there was flood on account of breakdown of Dantiwada Dam and the flood water had caused heavy damage to the lands of Juna Deesa. The particular land bearing Survey No.727/P/1 was affected by the said flood.
5.19. It was submitted that the team of Medical Officer, R.M.C. Juna Deesa, Block Health Officer, Deesa, and Urban Health Officer, P.P. Unit Govt.
Hospital, Deesa had visited the village and addressed letter dated 2.5.2009 to the Gram Panchayat that they had visited the village Juna Deesa on 17.4.2009 alongwith Chief Officer, Deesa Nagarpalika and Page 11 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT Sanitary Inspector. It was clarified that they had at no point of time given any N.O.C. for the allotment of the aforesaid land for the disposal of solid waste. It was also stated that they had clearly directed the Chief Officer not to dispose solid waste where there is flow of water since as per the Rules for disposal of Solid Waste, solid waste cannot be disposed of at a place where there is water flowing.
5.20. It was submitted that the Deputy Executive Engineer, Dantiwada Dam Works SubDivision no.1, Deesa had given certificate dated 16.11.2009 that land bearing Survey No.727/P/1 was affected by the flood of 1973 and had caused severe damage to this land and the water had gone to river Banas. Thus this land is flood affected land. It was further submitted that the flood had caused VOKLA in the gauchar land which is existing today.
5.21. It was submitted that the Gujarat Pollution Control Board had issued public notice in the newspapers on 17.1.2004 pursuant to order dated 14.10.2003 of the Apex Court. The said public notice Page 12 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT inter alia stated that nobody would be allowed to dispose of solid waste in open and if anybody does so, they would be dealt with in accordance with law.
5.22. It was submitted that as per the guidelines of Central Pollution Control Board, there should be a nondevelopment buffer zone upto 500 meters around the land fill site boundary. Despite this clear provision, the Collector, Banaskantha vide order No.A.Jamin.2.Vashi.59093 dated 27.12.2009 allotted land bearing Survey No.517(Paiki)1/20 admeasuring 5 acres for landless eligible persons. This land was allotted for the persons belonging to homeless persons of nomadic tribes. For this the Collector had relied on letter dated 22.12.2009 of the Block Health Officer and very Block Health Officer has written letter dated 2.5.2009 to the Juna Deesa Gram Panchayat.
5.23. It was submitted that the SSRD while disposing of the Revision Application did not take any of the contentions raised by the village people and on the contrary held that the Nagarpalika has Page 13 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT created borewell in the said land. Though admittedly the said borewell was dug during the period when there was stay operating. Not only that the SSRD has on extraneous grounds observed that the village people want to encroach upon the Gauchar land though no specific instance or allegation is made or produced by any of the parties in this regard.
5.24. It was submitted that the petitioner no.1 in this petition is the Gram Panchayat and the Sarpanch has declared on oath that the Gram Panchayat would ensure that no person of the village makes any encroachment whatsoever no the gauchar land and if any such encroachment is at all made, the Panchayat would make all efforts to remove it with the help of Taluka Panchayat and District Panchayat.
5.25. It was submitted that the manner and method in which the Deesa Nagarpalika is disposing of the solid waste is most careless and reckless. Not only solid waste but also hazardous medical waste is being dumped at the site in open. This medical waste include medicines, injections, foetus etc. This is Page 14 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT against the provisions for disposal of solid waste as well as disposal of hazardous medical waste. The Deesa Nagarpalika is burning the entire waste which is solid waste alongwith medical waste.
5.26. It was submitted that the photographs annexed would reveal that the solid waste is dumped in such a manner that cattle which come there for grazing also consume it and thereby it causes serious threats to the cattle as well as human beings who drink the milk of such cattle.
5.27. It was submitted that the Govt. of Gujarat has time and again directed by various Notifications that there should be enough gauchar land for the cattle of the villages. It is provided that there should be 100 acres of land for every 40 cattle. The order by which the gauchar land of the village Juna Deesa is taken away is in violation of these directions and Notifications.
5.28. It was submitted that continuation of this solid waste disposal site would cause immense danger Page 15 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT to the health and hygiene of the residents of village Juna Deesa and the cattles of the village since it is on Gauchar land. Not only that it will pollute the river as well as the underground water in the area.
Thereby the damage to the environment will be of permanent nature.
5.29. It was submitted that the Deesa Nagarpalika has to find some other site which is away from human habitat so as to avoid inconvenience and damage to the human habitat and cattle and environment.
5.30. It was submitted that the actions of the respondents authorities are also in violations of the directions issued by the Division Bench of this Hon'ble Court in SCA No. 10261/2000 vide judgment and order dated 2.8.2002 in Para24 thereof. The Hon'ble Court passed following guidelines in Para24 of the said judgment:
"24. To sum up, we issue the following directions: [A] The State Government will notify all the lakes and ponds as may have been shown in the areas covered by the Town Planning Schemes and the Development Plans, as also those in the areas not so covered throughout the State, in short, all the waterbodies in the territory of the State that vest in the State and / or the Area Development Authorities or the local bodies including Panchayats, in the official gazette within three months Page 16 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT from the date of this order.
[B] The State Government and all Area Development Authorities and local Bodies will protect, maintain and preserve all the waterbodies in the State which are identified as per the development plans, town planning schemes and the government records and which will be notified in the official gazette, as waterbodies and they will not be alienated or transferred or put to any use other than as waterbodies.
[C] The respondents authorities should take steps to get the standards of quality of water of the lakes and ponds prescribed by the concerned authority under the law, and devise mechanism for periodic monitoring of the quality of water in these lakes and ponds.
[D] The State Government, the Area Development Authorities and the Local Authorities should take urgent measures to rejuvenate the waterbodies which are to be notified in the gazette by undertaking a declared phased programme of desiltation and make adequate provisions for recharging them by appropriate storm water drains and other feasible means and to take measures against pollution of such waterbodies.
[E] The State Government shall expeditiously take steps to constitute Water Resources Council as contemplated in the Draft Water Policy of the State, headed by the Hon'ble the Chief Minister with other Ministers, including the Ministers in charge of Environment and Urban Development Departments to oversee the programme for protection, preservation and improvement of the waterbodies. The State Government will also constitute the Water Resources Committee headed by the Chief Secretary which may include the Secretaries of Environment, Urban Development and Agriculture Departments, for monitoring _ the implementation of the programme in a timebound manner with periodic review of its success. This Committee shall place the particulars of the targets achieved and the causes of nonfulfilment of the targets periodically before the Water Resources Counci, for its consideration.
[F] The State Government, the Area Development Authorities and the local bodies are directed to prepare an authenticated record in form of videography, photography and panchnamas of the existing encroachments and take urgent steps to remove them in accordance with law and the rehabilitation policies of the Government. Responsibilities of the officers / staff concerned should be fixed in respect of nonremoval of encroachments and fresh encroachments. The Water Resources Committee will closely monitor the removal of encroachments by the Page 17 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT concerned authorities, and, the Area Development Authorities and the local bodies shall furnish, quarterly, particulars of such encroachments and their removal to the Water Resources Committee.
[G] The question of determining the peripheral area surrounding a lake or pond on which construction may be prohibited will be taken up by the concerned authorities for consideration in the context of the development of individual lakes and ponds and the authorities will take decisions thereon having regard to the relevant factors which may have a bearing on the protection, preservation and improvement of lakes, ponds and other water bodies, and once the peripheral area, around a lake or pond, in which there will be no construction allowed is determined, the same shall be notified. All the applications for building permissions which may be pending, may accordingly be decided as per the regulations and keeping in view the requirement of individual waterbodies."
6. On the other hand learned advocate Mr.Rathod appearing for the respondent No.3, relying upon the averments made in the affidavitinreply filed by the Chief Officer, Deesa Nagarpalika submitted that the Collector has power to grant the land and accordingly the land was granted in the year 2003. Learned advocate Mr.Rathod relied upon the following averments in the affidavitinreply:
"7. At the further outset, I say and submit that , the original challenge by the petitioners is suffers from vice of delay and latches as the order of allotting land to the Municipality as "Dumping Site"(in some communication erroneously mentioned as "Land Fill site") of 29.12.2003 (Annx.A Pg.23) was challenged by the present petitioners for the first time in the year 2014 before the Ld. SSRD, i.e. after period of about 11 years, and therefore also the Hon'ble Court may be pleased to reject the same summarily with cost.
8. At the further outset, I say and submit that, the land was allotted to the municipality vide order dated 29.12.2003 of the Collector, Banaskantha (Ann.A Pg.23) as "Dumping Site" for establishing collection, segregation, processing and management of the municipal solid waste as per the provisions of "The Municipal Solid Waste (Management and Handling) Rules, 2000 ('the Rules, 2000' for short). I say and submit that, one Shankarlal Page 18 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT Bhagwandas Solanki (non petitioner herein) has challenged the said order of allotment of the Collector, Banaskantha before the Ld.SSRD by way of Revision Application No.37 of 2004. I say and submit that, the Ld. SSRD was pleased to partly allow the said Revision Application by remanding the matter to the Collector, Banaskantha vide order dated 10/13.05.2011 (Ann.B.Pg.32). I say and submit that, thereafter the Collector, Bananskantha after hearing all the concerned reconfirmed the earlier order dated 29.12.2003 vide his order dated 10.12.2013 (Ann.C.Pg.38). The facts of the case are enclosed herewith as ANNEXURER1 to this reply.""
9. PRELIMINARY SUBMISSIONS: 9.1. That, the land in question was assigned to the municipality as "Dumping Site" for the purpose of collection, segregation, storage, processing, and disposal of Municipal Solid Waste as per the provisions of the Municipal Solid Waste (Management and Handling) Rules, 2000.
9.2. That, as per the provisions of Municipal Solid Waste (Management and Handling) Rules, 2000 the municipal authorities is under obligation to manage the Municipal Solid Waste in the scientific way as per the provisions of Rules, 2000.
9.3. That, the General process of managing and handling the Municipal Solid Waste at the dumping site as under: Step1 Collection of solid waste from door to door within the municipality area.
Step2 Collected solid waste to be transported till the Dumping Site and to be dumped at the site.
Step3 At dumping site the solid waste aret o be segregated.
Step4 After segregation the solid waste to be managed as under: Biodegrable waste to be used for Varmi composting process to make it compost at the Varmi Compost Plant set up at site.
Recyclable Non Biodegradable segregated solid waste sent for recycling.
Non recyclable residual solid wastes are to be pressed and/or sent for disposal to the "landfill site" designated for the purpose.
9.4. That, on 13.09.05 the Government appointed M/s. GUDCL as nodal agency for constructing Shed for setting up Varmi Compost Plant at 'Dumping Site' and for developing 'Dumping Site' as well as "Landfill Site", if designated.
9.5. That, on 19.04.2011 M/S.G.U.D.C. has constructed shed/unit Varmi Compost Plant at the Dumping Site and handed over the same Page 19 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT to the municipality.
9.6.That, the municipality also drilled tube well as water is the most essential aliments for functioning the Varmi Compost Plant, but plant could not be commissioned because of pendency of Remand Case and thereafter because of Exparte interim order dated 29.05.2014.
9.7. That, on 26.11.2013 the municipality executed agreement with M/s. M.B.Enviro Science an organic, Ahmedabad to act as operator of facility for the purpose of Managing and Handling the solid waste as per the Solid Waste Rules, 2000, which was cancelled on 12.02.2016 as the said party did not commence the work even after rejection of Revision Application by the Ld.SSRD.
9.8. That, for commissioning the Varmi Compost Plant, initially there has to be storage of particular amount of Solid Waste at site for smooth functioning of Varmi Compost Plant and therefore the work of staking collected solid waste were started at site.
9.9. That, after the order of Ld. SSRD, considering the urgency on 15.02.2016 is enclosed herewith and marked as ANNEXURER2 to this reply.
9.10. That, municipality has also issued work order on 08.02.2016 for construction of compound wall of the dumping site so as to avoid visibility of Dumped solid waste.
9.11. That, unless plant was permitted to be functioned smoothly then only solid waste can be managed property as per the Rules. The smooth functioning of Varmi Compost Plant and Management of Solid Waste might take about 2 to 3 months period after the commencement of the plant.
9.12. That, the municipality is neither collecting the 'Medical Waste' nor permitting anyone to dump/dispose the medical waste at the dumping site as the same is required to be disposed of in accordance with 'the BioMedical Waste (Management and Handling) Rules, 1998' by the nursing homes/hospitals.
9.13. That, the municipality is also not disposing the remains of dead animals in open at the dumping site or nearby to the Dumping Site or at any other place in open.
10. Without prejudice to what is stated hereinabove, and before dealing with the memo of petition on merits I most humbly submit that:
10.1. I say and submit that, I was shocked to see the photographs of Medical Waste produced with the memo of petition at Pg.84 and the dead animals (Pg.87) and I personally visited immediately the site as well as personally inquired with the staff of the municipality immediately that neither the Medical Waste is being collected or dumped at site by the Municipality nor the remains of dead animals are thrown in open at site or nearby to site.
10.2. I say and submit that, the Medical waste is being Page 20 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT
collected by the agency directly from the Nursing Homes/ Hospitals and each Nursing Homes/ Hospitals are having agreement to dispose of the Medical waste as per the BioMedical Waste (Management and Handling) Rules, 1998. Therefore question of collecting Medical Waste, by Municipality and to dumped at site does not arises. Copy of letter issued by Secretary and President of Indian Medical Association, Deesa Branch dated 01.11.2015 is enclosed herewith and marked as ANNEXURER3 to this reply.
10.3. I say and submit that, one minute observation of photographs at Pg.84 it seems that 'Medical Waste' are being collected in cloth or plastic bag and then the same seems to be photographed. On further minute observation it also becomes clear that the photograph posted at middle of page 84 was seems to be enlarged twice and posted above and below of the middle photograph and annexed with the memo of petition as 3 different photographs. I deny that, the photographs of Medical Waste are of Dumping Site of Deesa Municipality. However, I say and submit that, if at all the petitioners bring any material or proof before me to show that any of our employee has even permitted to be dumped the Medical Waste at site then I assure this Hon'ble Court to cause immediate inquiry and to take proper remedial steps, but as on date no such material was produced before me. I deny and dispute the photographs enclosed with the memo of the petition.
10.4 It is submitted that, similarly photographs of remains of dead animals (Pg.87) are also shocking. I say and submit that, I reiterate that, I personally visited the Dumping Site as well as the surrounding area and also made inquiry with the staff I was told that by the staff that, remains of dead animals are never brought at site. I say and submit that, since the immemorial, it is the practice followed by the Municipality that, the remains of dead animals are being taken away by the persons belonging to Chamar Community and after removing skin of the dead animals, they are burring the remains of the dead animals. I also personally inquired with them and I could gather the information that they are not throwing remains of dead animals in open.
Moreover, I was also informed by them that the dumping site is at the distance of about 5 kilometers from the area where the skin of dead animals (after removing skin) at the distance of about 5 kilometer and to throw there. However, for abundant caution I instructed all of them to avoid, if at all anyone is doing such type of activity and also issued the public notice in this regard. Copy of public notice is enclosed herewith and marked as ANNEXURER4 to this reply.
At this stage, I say and submit that, there are about 3 Panjrapole within the radius of 3 kilometers of the site and there are all chances of throwing remains of dead animals by them or by the Juna Deesa Gram Panchayat itself cannot be ruled out. But at the cost of repetition I say and submit that no dead animals are thrown in open by the Deesa municipality and therefore the photographs produced at Pg.87 are highly disputed and denied by me.
11. Without prejudice to what is stated hereinabove, I am Page 21 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT dealing with the memo of petition as under: 11.1. With reference to photograph nos.1 to 3.1 of the memo of the petition, I say and submit that, the contentions are formal and hence, I do not deal with the same at this stage.
11.2. with reference to paragraph no.3.2 of the memo of petition, I say and submit that, on 24.05.2004 one Shankarlal Bhagwandas Solanki and others have filed Revision Application No.37/04 before the LD.SSRD, which came to be partly allowed and remanded to the Collector for the purpose of examining issue as stated in the said order.
11.3. With reference to paragraph no.3.3. of the memo of the petition, I say and submit that, in the remand proceeding the Collector after hearing all concerned and after making detailed inquiry reconfirmed the earlier order dated 29.12.2003 of assigning land grant vide its order dated 10.12.13 passed in Remand Case.
11.4. With reference to paragraph nos.3.4 and 3.5 of the memo of petition, I say and submit that, the present petitioners have approached the Ld.SSRD and challenged the order of Collector without joining the answering Municipality wherein exparte interim order of maintaining status quo was granted and therefore the Varmi Compost Plant could not be commissioned. However, now the operating agency was change and they have geared up the work of commissioning plant. I further say and submit that the Municipality has also issued work order for the compound wall and the work is in progress.
11.5. With reference to paragraph no.3.6 of the memo of the petition, I say and submit that, the petitioners have not made Deesa Municipality as party to the proceeding before the Ld.SSRD and therefore the interim of the LD.SSRD was not withing the knowledge of municipality. I say and submit that, the municipality has never violated any of the order of any authority. However, the work of commissioning of Vermi Compost Plant and application for the electricity for bore were stalled by the municipality as the interim order of the Ld.SSRD came to the notice of Municipality and waited till final disposal of the Revision Application.
11.6. With reference to the paragraph no.3.7 of the memo of the petition, I deny that the order passed by the Ld.SSRD (Ann. G) is illegal, arbitrary and/or without considering the material on record.
12. With reference to paragraph no.4(A) to 4(EE) of the memo of petition, are the ground set out in the support of the petition and my advocate will deal the same at the time of hearing of this petition. However, I deny that, the municipality has committed any illegality. I also deny and dispute the interpretation put forwarded by the petitioners of the rules of the solid waste management. It is also denied that the municipality is throwing any hazardous waste either medical or industrial to the site. It is also denied that the petitioner no.1 is deprived of any Page 22 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT Gauchar land because of grant of 10 Acres land to the Deesa municipality. It is also denied that there is a permanent Water way is at the site. It is also denied that there are any residential are situated adjoining to the land in question."
7. Learned advocate Mr.Patel for the newly joined Gujarat Pollution Control Boardrespondent No.4 submitted that the respondentBoard has granted authorization under the Municipal Solid Waste (Management and handling) Rules, 2002 to set up and operate waste processing/ waste disposal facility at the land in question and while granting the authorization, various conditions are imposed upon the respondent No.3Nagar Palika to take time bound action plan in detail to develop a land field sight as per the Rules, 2000.
8. It was submitted by the learned advocate Mr.Patel that the authorization was granted up to 2017 and thereafter, the application for renewal made by the respondent No.3 was in consideration.
9. Learned advocate Mr.Rathod at this stage submitted that the respondent No.4 has renewed the authorization for further five years on 7th June, 2019.
10. Learned Assistant Government Pleader Mr.Joshi submitted that the Collector has exercised the powers wasted in him while granting land to the respondent No.3Nagar Palika and therefore, there is no infirmity in the impugned order passed by the Page 23 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT authorities.
11. Having heard the learned advocates for the respective parties and having gone through the material on record the only question which falls for consideration in this petition as to whether the respondent No.2Collector, Banaskantha has passed the order dated 29.12.2003 for allotting the land admeasuring 10 Acres to the respondent No.3Deesa Nagar Palika for disposal of the solid waste is in accordance with law or not.
12. On perusal of the impugned order dated 29.12.2003 and remand order dated 10.12.2013 passed by the Collector, Banaskantha as well as the order dated 22.07.2015 passed by the Special Secretary Revenue Department (Appeals) it emerges that the Collector has passed the impugned order pursuant to the Government Resolution dated 30th August, 2003 and after considering the order passed by the Supreme Court for protection of the environment and in view of the Government Resolution dated 08.12.2003 the 10 Acres of land was alloted to the respondent No.3 as per the Rules, 2000.
13. It is also come on the record that the respondent No.3Municipality is utilizing the land in question for solid waste disposal for more than 10 years. The respondent No.3Municipality has also commissioned a Memorandum of Undertaking with one Nandanvan Gram Udhyog in the year 2016 for disposal Page 24 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT of the solid waste and accordingly, the project of the solid waste management is undertaken by the agency. The respondent No.4Gujarat Pollution Control Board has also in its affidavitinreply has stated that one Babubhai Keshabhai Raval resident of village Juna Deesa has filed Original Application No.36 of 2019 before the National Green Tribunal (for short 'the NGT') for raising concern with regard to pollution and the respondent No.4GPCB is made party to that proceedings. Reliance was also placed on the application filed before the NGT to point out that the grievance raised in this petition is with regard to pollution on account of dumping of mixed garbage in the land in question.
14. In view of the above facts, the grievance raised by the petitioners in this petition with regard to the pollution in environment is subject matter of pending litigation before the NGT and therefore, the power of the Collector to grant the land for disposal of the solid waste cannot be said to be exercised erroneously. As the matter is pending before the NGT with regard to the pollution and environment, the grounds raised by the petitioners are not dealt with in details so as not to foreclose the right of the petitioners to agitate such a ground before the NGT in the pending proceedings.
15. This petition is accordingly disposed of with regard to the prayers made by the petitioner challenging the order dated 22nd July, 2015 passed by Page 25 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022 C/SCA/19214/2015 JUDGMENT the SSRD confirming the allotment of land to the respondent No.3 by the Collector in the year 2003 as the Collector in exercise of his powers under Section 110 of the Act, 1993 has deducted the land in question from the Gauchar land taking it as a Government land and allotted the same to the respondent No.3. Allotment of the Gauchar land for the dumping site would not amount to violation of fundamental right under Article 21 of the Constitution of India as contended by the petitioners because the respondent Nos.3 and 4 are utilizing the land in question for disposal of the solid waste according to the Rules, 2000 and if the petitioners have any grievances with regard to the disposal of the solid waste is concerned, the litigation is pending before the NGT. Therefore, the petition is not entertained so far as it relates to allotment of 10 Acres land to the respondent No.3 for disposal of the solid waste of the Deesa Town.
16. The petition is accordingly dismissed. Notice is discharged.
Order in Civil Application :
In view of the disposal of the main matter, no order is required to be passed in the Civil Application and the same is accordingly disposed of.
(BHARGAV D. KARIA, J) PALAK Page 26 of 26 Downloaded on : Wed Jan 12 07:42:21 IST 2022